*1 is It clear that the dismissal here “might upon NEUFELD, have a factual been based William D. Alanis, but
determination favorable” Claimant-Appellant, prosecutor’s was so based reason of the sufficiency remain- evaluation of his FERRIS BROWNING Accordingly, evidence. she cannot be INDUSTRIES, Employer, retried, majority so this Court holds. statutory prohibits law also Ranger Company, Insurance retrying
the state from Alanis. I.C. 19- § Defendants-Respondents. 1719 reads as “When the defend follows: acquitted, is or has once ant convicted No. indictment, upon placed jeopardy been an Supreme Idaho. Court conviction, acquittal jeopardy is a offense to another indictment for the bar Dec. former, attempt charged in the or for an same, or for an offense includ commit therein, might been
ed of which have
convicted under indictment.” I.C. acquittal an follows: 19-1718 defines as
§ acquitted on
“Whenever the defendant acquitted the same
the merits he is
offense, notwithstanding any defect or substance in the indictment
form readily the trial was had.”
which
apparent erroneous decision on the consequence
merits is no
whether a defendant can retried. long exceptions: so
statute makes no acquitted, the rea
the defendant is a of sufficient evidence
son failure defendant, re the state cannot
convict
try him or offense. her same
Therefore, statutory grounds as well as grounds, hold that
on constitutional we on the matter
Alanis cannot be retried acquitted. charged
upon which she was
HUNTLEY, J., concurs. *2 began
benefits. Neufeld working for Browning (BFI) Ferris Industries in June garbage 1978 as a alleg- collector. Neufeld es that in May injured or June of he his back in the employment course of his with BFI. He lifting testified that while a heavy steel can he a noticed strain pull hip his lower left area. He working notify any- continued and did not alleged of the accident. Neufeld testified he notify did not BFI of his because he felt was only a strained muscle which would heal itself without He treatment. also testified posted that a memorandum on the drivers’ regarding board at absenteeism rein- “supposition forced his that minor strains important worry stuff weren’t that about.” The memorandum read as follows: know, you “As all it is vacation season again. Lately, though, we have had a distressingly poor absenteeism record. now, As of we were able to allow two time, employees off for vacation at one continue, but should the absenteeism may possible not be from stand- point keeping the costs at work force out, urge you help all to effect. ill, you seriously attempt unless are coming pains aches and to work. Minor work, occasionally are a result our problem, they are a chronic should unless expected.” perform Neufeld continued to work following alleged acci- his usual duties Rae, chiropractor, on dent. He saw Dr. complaining slight of a mus- again back. He saw cle strain his lower Dr. Rae Dr. Rae on indicated on that testified that Neufeld Law Of- Lynn M. Luker of Goicoeehea injured date that he had Boise, fice, Chartered, claimant-appel- for had been garbage cans and that his back lant. couple of months. Dr. bothering him for a report not file a Rae testified that he did Barrett, Michal G. McPeek W. John Industrial Commission because with the Boise, Blanton, Moffatt, Thomas, & Barrett slight only strain Neufeld it was defendants-respondents. go away. just which would DONALDSON, Chief Justice. problems that his back Neufeld testified September of 1982. saw Claimant, appeals from worsened Neufeld William again on No- 20 and Dr. Rae on October de- an order of the Industrial Commission Following Novem- 15 and vember nying his claim for worker’s working stay m stop him and to began seeing Dr. advised appointment, ber 19 approximately Rae twice a week. bed. he first notified Neufeld meantime, had continued In the Robinson, manager, safety Jim of his BFI’s February Dr. Rae. On to see mid-September He stat- injury in of 1982. him Dr. O’Brien. Dr. referred Rae *3 ed Robinson hurt his that he told he had diagnosed suffering Neufeld O’Brien bothering May and that it still
back
and sent him to a
a herniated disk
from
spoke
He further testified that he
him.
surgeon.
neurological
Dr. O’Brien testi-
November, tell-
a second time in
Robinson
pro-
history Neufeld
based on the
fied that
ing
X-rays,
going
him that he was
to have
him,
opinion
his
that Neufeld’s
it was
vided
and a third time December.
lifting garbage
from
cans.
resulted
injury
longer
BFI
employed
was no
at
Robinson
surgery
February
underwent
on
Neufeld
not
hearing
at
time of the
and did
21,
part-time
He returned to work
parties stipulated that Robin-
testify. The
1983,
19,
yard
doing light-duty
April
on
first
have testified that Neufeld
son would
company physician
Because BFFs
work.
problems
on De-
notified him of
agreed
treating physicians
and Neufeld’s
14,
a memo-
cember
1982. Robinson wrote
not
collec-
that he should
return
concerning the
14 con-
randum
December
18,
tion,
May
left
on
1983. Dr.
placed
which was
in Neufeld’s
versation
following surgery
testified that
O’Brien
personnel
provided
file. The
as fol-
memo
permanent partial
impair-
had a
Neufeld
lows:
rating of
of the whole man. Dr.
ment
20%
“Subject: Bill Neufeld's Back Problem
impairment at
rated Neufeld’s
Daines
7.5%
today
“Talked to Bill
about his back
man.
whole
problem.
know
He indicated he did not
claim on
Neufeld turned
an insurance
hap-
happened,
it had
when it
how
or
seeking coverage
group
policy
health
BFFs
pened.
it at
he had done
7,
injury
February
on
1983. Dr.
filing
for the
was not sure. He was
home but
previously filed under the same
Rae had
company
all claims under
insurance.”
payment for his treatment
policy to obtain
9, 1982,
On December
Neufeld asked
through
from
December
Neufeld
Petera,
days
dispatcher,
BFFs
Joe
for two
claim,
indicated
1982. On
Neufeld
help
pain.
off
relieve his
Neufeld
back
began
in May
the accident
sickness
that
prob-
inform Petera
back
not
that his
back,
1982, that
it was
strained
a
lems were work-related. At BFFs annual
he did not know when or how oc-
that
party,
evening
of Decem-
Christmas
question of
In answer
to the
curred.
spoke
ber
Neufeld
to Petera
due,
way,
injury
Weber,
Operations Manager,
BFFs
to John
occupation,
patient’s
he checked “no”
problem. They
back
about his
He also indicated
and wrote “unknown.”
might
Neufeld told them the
that
filing
not
for worker’s
that he would
home.
have occurred at
compensation.
problems
to es-
Neufeld’s back
continued
compensation
Neufeld filed
worker’s
January 5, 1983,
on
he took
calate and
Hearings
February
on
benefits
request of
time off work. At the
some
held on October
1983 and
No-
were
Daines,
Weber,
John
Neufeld saw Dr.
vember
1983. The commission ultimate-
surgeon,
January
11. Neu-
orthopedic
(1)
concluding
ly denied Neufeld’s claim
history
Dr. Daines a
of his back
gave
feld
compensable
that he had not suffered a
stating
began
April
problems
they
meaning
accident within
of the work-
give
specific
He did
of 1982.
law,
(2)
accident,
but
that his
er’s
his
date of
did indicate
delay of notice.
symptoms
perform-
worsened when he was
claim was barred due to
job duties.
felt
then
reconsideration.
Dr. Daines
Neufeld
moved for
had a
probably
stating
herniated disk and
the motion
The commission denied
prove
Neufeld had failed to
injured,
that his
but also that his
was the
was the result of an accident as
arising
result of an accident
out of and in
defined
Compensa-
the Idaho Worker’s
employment.
proof
the course of his
His
appeal
tion Law. This
followed.
probable
merely
must establish a
possible connection between cause and ef
appeal,
On
Neufeld asserts that the com-
fect to
contention
that he suf
mission erred in finding that he failed to
Corpo
accident. Dean v. Dravo
fered an
compensable injury.
establish a
He fur-
ration,
511 P.2d
ther asserts
BPI
prejudiced
was not
delay
giving
notice of his
therefore,
that the commission erred in
case,
In the instant
the commission
finding that his claim was barred due to
determined that Neufeld had failed to meet
delayed
notice. Because we affirm the
Specifically,
this burden.
the commission
finding
commission’s
that Neufeld did not
*4
found that Neufeld had not established
establish that he had suffered an accident
that he suffered an accident within the
meaning
within the
of the worker’s com- meaning
compensation
the worker’s
law,
pensation
unnecessary
we find it
to
72-102(14)
“inju
statutes.
I.C.
defines
§
address the notice issue.
ry”
personal injury
as a
caused
an acci
reviewing
Before
the evidence that
arising
dent
of and in the
out
course of
reaching
commission
relied on
its deci
employment. An “accident” is defined as
sion,
scope
we note the limited
of our re
unexpected,
“an
undesigned, and unlooked
appeals
view.
In
from the Industrial
event,
mishap,
for
or untoward
connected
necessarily
Commission our review is
limit
occurs,
industry
with the
in which it
and
ed to
the commis which
reasonably
can be
located as to time
findings
sion’s
supported by
factual
are
occurred,
place
when
it
causing
and
where
competent
substantial and
evidence.
ID.
72-102(14)(b).
injury.”
prior
an
I.C.
Our
§
9;
72-732;
CONST. art.
I.C.
§
§
Wolf v.
cases,
definition,
paralleling this
indicate
Systems,
& Broad Home
Kaufman
when,
that an accident
occurs
the course
(1984).
Idaho
Based our treat- evidence, surgery, Mr. Neufeld was suffi- the date of although conflicting, Rae, ed three different Dr. doctors: Mr. Blue Linen Supply, Ribbon treating Daines, physician; Neufeld’s 653 P.2d orthopedic O’Brien, surgeon; and Dr. points following evi- Mr. treating neurologist. Neufeld’s Both dence, testimony, in addition to his own Drs. Rae O'Brien concluded that Mr. lifting garbage his assertion that was work-caused. Dr. injury: cans caused his testify Daines did not causation about (1) Dr. O’Brien testified it was his way or other. opinion Mr. Neufeld herniated disc cans, hearing Commission,1 At a as a before the result of and that lifting garbage “the act of long Mr. cans so September Neufeld testified that years] probably signifi- contributed Robinson, [four 1982 he Jim informed BFI’s safe cantly weakening to the the back which officer, ty problems of his back which he finally Deposi- in the resulted herniation.” picking up heavy gar attributed to some O’Brien, p. tion of Dr. 8-9. bage this, cans. Robinson denies states that the first he knew of Mr. 'Neu (2) Dr. also that it Rae was his problems feld’s was on December 1982. opinion heavy lifting required problems. Mr. Neufeld caused his back surgery, After Mr. Neufeld returned to Deposition Rae, pp. of Dr. 56-57. This work April 1983. Mr. Neufeld could uncontroverted, must, testimony was which heavy lifting, performed not do so therefore, accepted Pierstorff, as true. 18, 1983, light duty until work when supra, 58 Idaho at P.2d at needing BFI ran of such out work to be (“The witnesses, applicable rule all Accordingly, done. left BFI. parties or interested the event Mr. Neufeld filed a claim for worker’s is, action, board, court, of an that either a April benefits. On jury accept positive, as true the the Industrial Commission Mr. Neu- denied uncontradicted aof credible wit feld’s claim. The Commission concluded ness, inherently his testimony unless im (1) Mr. Neufeld had not suffered a probable or rendered so facts and cir compensable *6 meaning accident within the hearing cumstances disclosed at the or tri Act; Compensation al.”) of Idaho’s Worker’s had been first tried to the Pierstorff (2) and that Mr. Neufeld’s claim was barred Industrial then Commission. Since it also has notify applied because he did not BFI of his been to factual determinations made sixty-day statutory juries within and trial courts. See Din period the time 620, Finch, 626-27, neen v. 100 Idaho of I.C. 72-701. § (1979), application P.2d 581-82 where critical the rule was to this Pierstorff I. re judgment. Court’s Accord In Estate of The first issue to be decided is whether Stibor, 162, 164, compensable Mr. Neufeld has a suffered pursuant accident to Idaho’s Worker’s apparently The Commission decided that Compensation Act. The held Commission it was not bound this uncontroverted disagree. that he did not. We testimony. acknowledged but around “reasoned” it: begin We with a the rule that claimant proving compensable has the a burden Dr. testified the Claimant Daines proof accident. His establish gave history pain him a of an onset ” “probable, not merely possible, April May cause of either or He of 1982. did not injury-causing report specific physi- his and that the acci- a to the accident dent was work-related. Callantine cian. hearing referee.
1. Whenever herein reference made to the officer —the Commission’s Commission, three-member it a actually Rae Rae, that Dr. chiropractor, The states saw Claim- Commission entry chart no 11, 1982, entry made no ant on June and made on June patient respect chart at back on the Claimant’s card or with saw Dr. The time Mr. Neufeld chiropractor time. 1982—the first problems. Again, claim- that on June he saw the Rae for entry pain. ant for back testified that neither absence anof He also on that date he when saw Claimant on Mr. Neu- proves disproves or the cause of him at that time the told problems. Claimant What the Commis- feld’s back bothering however, him for is the un- that his back had been ignore, sion chose to couple of months. fact that Dr. Rae did testify contradicted the June 1982 visit that at through sum- The Claimant worked he hurt his did say that he believed that period and during mer of 1982 that time lifting garbage Dr. Rae also cans. chiropractor to the occa- went on two explained why did at that time On the first of his visit sions. occasion com- to file a claim for worker’s want chiropractor to the in the summer pensation benefits: 1982, allegedly within a few weeks of no accident, he made occurrence of you Q. you explain why me Would mention of such an to the chiro- accident reports file the Industrial didn’t practor. about it? Commission previous had The Claimant filed three It was —he didn’t want me to. A. compensation workmen’s claims while he said want to—He employed at B.F.I. had received strain, and he mentioned some- was a on sev- workmen’s benefits thing about a that —that was memo' claims. eral of those The Claimant something board or that was a bulletin responsibilities reporting aware of referring injuries would minor to—for Employer, accident to his an reprimanded something persuaded is not that the Claim- I think he nature. was intimidated Referee out ant suffered accident which arose what it was. employment of and the course of his Now, Q. you when tell about did he early June, late Ref- memo or whatever? eree concludes that has Claimant couple ago. I A. It was of months meet proving failed to his burden of can’t remember exact date. personal by an was caused Q. explanation this is the which he So meaning accident within the of the Work- given you past in the months as has few Compensation R., p. men’s 25-26 Act. to his reasons? added). (emphasis said—When A. At first *7 first the above irrele- Each of reasons is either hap- in and me what came told first the record. vant or unsubstantiated said, you pened, he said that he—I “Do First, the fact Daines did not Dr. back you your because hurt want file the cause of does not mention accident lifting garbage cans?” it did not Dr. Daines did mean that occur. said, “No, I I think don’t because long time not evaluate Neufeld until it as just go away. treat it will We’ll a time after the accident occurred and at didn’t it was that serious. a”—he feel pain Mr. Neufeld was in when considerable added.) (Emphasis 11, 1983). also testi- (January Dr. Daines had related to The memo which Neufeld determining way fied that the best for notice to all employer’s Dr. Rae was specific Mr. Neufeld did suffer a read: workers. job he hurt his which accident All drivers To: of the would be to check the records back Petera From: Joe Deposition who first him. physician saw This Dr. Rae. RE: Absenteeism pp. 26-27. would be know, you As it is all vacation season “sore muscles Dep- from the cans.” again. Lately, though, we have had a Rae, p. osition of Dr. 30. The Commis- distressingly poor absenteeism record. sion’s selective recitation of the facts im- now, As of we are able to allow two plies that not until much later did Mr. employees off time, for vacation at one Neufeld even assert his back as be- but should the absentee situation contin clearly work-caused. Such is a misun- ue, may possible not be from the derstanding of the record. standpoint keeping of a constant work The Commission next states that Mr. urge you force effect. help all to Neufeld, having previous filed three work out, you ill, seriously and unless are claims, compensation er’s was aware of his attempt coming to work. Minor aches responsibilities reporting his accident to pains are occasionally a result of BFI.4 We find this totally statement to be work, they our and unless are a chron question irrelevdht to the of industrial problem, (Em ic expected. should be causation. What Mr. Neufeld has done added.)2 phasis past is of little help determining in here Thus, the Commission’sconclusion that no the cause of his back What is rele mention the accident was made at the vant is the of Drs. Rae and appointment with Dr. Rae O’Brien, Neufeld, and Mr. all which was patently in error. uncontroverted, goes and which toward It is evident that the reason Mr. Neufeld proving “probable” more than cause of declined to file a worker’s Mr. Neufeld’s back but also estab claim was not that he did not think his back lishing unequivocally injuries that such injured had been job, but that he job occur on the lifting heavy as a result of problem at that time that the garbage cans. go away. a minor strain which would De- arguments BFI’s track the Commission’s ciding when to compensa- a worker’s file closely. conclusions In addition to what claim, however, tion has no relevance at said, the Commission has which we have all how and when Mr. held to be either clearly irrelevant or erro- occurred. It re- neous, presents BFI argu- an additional notice, lates to but it prove does not ment that veracity. attacks Mr. Neufeld’s disprove causation. argues that Mr. point Neufeld at one The Commission further distorts the employees time did tell fellow BFI by failing accurately record to state injuries may his back not have been work- completely what occurred between Dr. Rae related. and Mr. Neufeld at their deny making Mr. Neufeld did not such quoted above, visit. As the Commission disclose, statements. What BFI fails says merely Mr. Neufeld told Rae that however, is why the reason bothering had him been said what did:5 couple of months. What the Commission3 mention, however, Q. present safety that Dr. Mr. Petera does not Rae [BFI’s complained manager] during testified that the awards majority willing go say confronting 2. The so far as to confusion is able to avoid factual problem reality. notice that it addressed given to absenteeism. If this caution were *8 employees, army privates, or 100 or 100 football majority blithely adopts 4. The this line of rea- agree players, 100 would that it is a 99 out of soning totally the Commission but fails to put up anything to less than ma- directive explain the relevance of what Mr. Neufeld has jor pains. aches and illnesses or past done in the to what caused his this case. majority now the who commands the 3. And majority opinion opinion The for the Court. majority aparently ignore 5. The has chosen to separately contentedly 11 fails to treat obviously way this evidence which stands in the Rae, to Dr. and in that 10 visits opinion. of its result-oriented
907 17, compensable injury within banquet you indicated not constitute a December him, effect, your words to that parameters of Idaho’s Worker’s Com- injury possibly at home. happened Law. As Court stated pensation Co., P A & Tea Yes, Hadden sir. A. Idaho (1972), “findings as to the 499 P.2d Q. you saying Do recall that? cause, disability origin of a extent Something I A. to that effect. don’t by profes- some supported be at least I completely. recall conversation proof.” sional my time was ktiow that attitude at that safety Robinson man- Jim former [BFI’s by BFI for the The evidence introduced already I ager] had told me that couldn’t impeaching falls so purpose of Mr. Neufeld through Comp. run it Workmen’s as insub- wide of the mark to be So, Q. why, assuming you that made evidence, incompetent but also stantial and home, that at happened that statement it impeaching amount to evidence at to be not you if— why would made that have all. BFI’s evidence fails address just run it on A. It was couldn’t —I other O’Brien fact witnesses —Drs. Comp it at just Workmen’s so leave Rae —substantiated Mr. Neufeld on all home. I didn’t have reason at Further, pertinent points. the fact time, guess, to be suppose I that it could the cause of unsure about through company any run the insurance injury, because its relative lack way. other first, itself severity at is evidence in and of Q. Why you suppose that? truth, that, telling than not rather down, A. If I were on the put telling along. Only a has been the truth all form, job, it happened insurance on the day dogmatical- from fabricator would one put totally. would have been If I denied ly just for an assert cause down— beginning strain. was in the a minor back Q. by Denied who? Moreover, injury-producing whether the company, A. insurance Provident the exact date as be- accident occurred my Life and Accident. If it was —done unnecessary by lieved Neufeld is job, by it would denied compensable if it is you If Provident Life and Accident. supra: stated in Wynn, As this Court I mark it that —if have marked it would suggests [Respondent appeal on this home, really that I done it at wasn’t “accident,” it under the definition of telling So, the truth. it “Un- I marked compen- required “that to be R., Vol. pp. known.” 190-91. by must be caused an event sable Wynn In v. J.R. Simplot, 105 mishap reasonably which can be located (1983), this Court it oc- place to time when and where a 4-1 decision reversed the Industrial Com- curred, resulting conditions that] [and mission, evi- stating: “The uncontradicted period of repetitive trauma over a from contrary Industrial Commis- dence com- is not are not time which reasonable finding symptoms that claimant’s sion’s supra, disagree. Wynn, pensable.” We disc.” Be- ruptured were not caused P.2d at 631. 105 Idaho at findings incon- cause the Commission made highlights irrelevancy of holding uncon- sistent with unsubstantiated This evidence, empha- its placing reversed and BFI’s troverted this Court the Commission’s uncertainty as to of benefits to the claimant. upon denial sis is rele- when the accident occurred. What exactly type same are faced with We following inquiry: is the vant problem in this case. The Commission’s stated, repeatedly this Court has As the uncontro- contrary are conclusions engaged in his ordi- fact, “If claimant be testimony. is no evi- In there verted of such nary usual work and the strain dence at all to the Commission’s injury does becomes sufficient to overcome that Mr. labor view Neufeld’s back *9 908 of body
resistance the validity claimant’s and the ascertain of the Commission’s causes injury compensa an is findings.
ble.” Whipple
Brundage,
v.
80 Idaho
(1958);
Dept.
v.
Lewis
II.
Enforcement,
Law
79 Idaho
of
second
The
issue to
is
decide whether the
(1957). Wynn,
supra, 105 Ida
P.2d 976
holding
Commission erred in
that Mr. Neu-
ho at
909
supra,
Pierstorff,
accept-
in
September;
in
not
found
done Mr. Robinson
ed as true.
January
anything done —a
until
1983 was
the
Mr. Robin-
full month even after
date
very
is
similar to
issue before us
The
him of his
son claims Mr. Neufeld informed
Dredg
Frost v. Idaho Gold
in
that found
injury.
Co.,
ing
A distinction between received notice if had Neufeld Kennedy’s claim that claimant] accident rather than day after the later— sixtieth undergo surgery until much did not P.2d at Id. at sixty-first.” BFI of notifying some six months —after argument such an Dick We held medical care to adhere persuasive and continue was not injury and the date of his received between today. But the issue raised position to that thera- notice was conservative the date of today— us Dick is not the issue before Second, O’Brien— peutic treatment. resulting from prejudice lack of neurologist treating Mr. Neufeld’s —did by the intro- proved improper notice can be re- testify that treatment expert medical of uncontroverted duction during in issue was the time ceived care rendered testimony that medical remedy. This appropriate same even had would have been and, to the rule pursuant uncontroverted employer been properly notified.8 On this
issue we hold proof that such overcomes any presumption prejudice, and that in
this case Mr. Neufeld has met his burden proof.
For the foregoing reasons we reverse the
Industrial Commissionand remand the case
back to it for proceedings further consist-
ent with opinion. appellant. Costs to
Kenneth dba Trout Farms, Inc., Plaintiff-Appellant,
v. COMPANY,
TWIN FALLS CANAL
Defendant-Respondent.
No. 15820.
Supreme Court of Idaho.
Dec.
Stephen Beane, Boise, W. plaintiff- appellant. Slette, Nelson, Rosholt,
Gary D. Robert- son, Tucker, Tolman Falls, & Twin for de- fendant-respondent.
SHEPARD, Justice. years ago,
Some seven and one-half
defendant-respondent’s canal
allegedly collapsed, damaging plain-
bank
tiff-appellant’s fish farm and stock. The
testimony
expert
competent
8. When
on this issue is contro-
then based on substantial and
evi-
verted,
dence,
Callantine,
responsibili-
supra;
it will be the Commission’s
will
affirmed.
ty
Hamby
Simplot,
to decide which
is more credible.